Slaght v. Northern P. Ry. Co.

• Decision Date: 14 August 1905
• Citation: 81 P. 1062,39 Wash. 576
• Parties: SLAGHT v. NORTHERN PAC. RY. CO. et al.
• Court: Washington Supreme Court

81 P. 1062

39 Wash. 576

SLAGHT v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Washington

August 14, 1905

Appeal from Superior Court, Whitman County; Chester F. Miller Judge.

Action by Jacob Slaght against the Northern Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

John M Burns (James B. Kerr, of counsel), for appellants.

Thomas Neill (W. E. McCroskey and A. A. Wilson, of counsel), for respondent.

RUDKIN J.

In March, 1883, the plaintiff in this action established his residence on lots 10, 11, 14, and 15, of section 1, township 16 north, of range 45 east of the Willamette meridian, in Whitman county, and continued to reside thereon until the year 1897. On the 31st day of October, 1887, he made application at the proper land office to enter said lands under the homestead laws of the United States, alleging settlement on the 4th day of March, 1883. The Northern Pacific Railroad Company, having prior to said application selected said tracts as indemnity under the act of July 2 1864, was notified of the plaintiff's application by the register and receiver of the local land office. The contest thus instituted was carried by appeal to the Secretary of the Interior, and resulted in a final decision in the plaintiff's favor on the 20th day of May, 1896. On the 20th day of April, 1897, a homestead patent issued to the plaintiff. During the year 1886 and the first half of the year 1887 the Spokane & Palouse Railway Company, a corporation organized and existing under the laws of the territory of Washington, constructed and completed a railroad upon and over lots 10 and 11, above described, at great expense; and ever since such construction said railroad has been operated daily, carrying freight, passengers, and United States mail. Since 1886 the Spokane & Palouse Railway Company and its successor in interest have claimed a right of way over said lots 10 and 11 for said railway 100 feet wide on each side thereof. It would be possible for the Northern Pacific Railway Company, successor in interest of the Spokane & Palouse Railway Company, to carry freight, passengers, and United States mail over a right of way across said described lands not exceeding 25 feet in width, and a space 100 feet square would permit of the erection of a depot at the town of Palouse; but great inconvenience would result to the citizens of Palouse and vicinity and to said railway company if these were all the facilities had for receiving and delivering freight, passengers, and mail. For the convenient, prompt, and expeditious handling of freight and the erection of warehouses and elevators for the storing of grain and wheat it is necessary to have a right of way 200 feet in width across said land, as claimed by the railway company. At the time said railway was surveyed and constructed the plaintiff resided upon said lands, knew of its construction, and of the expenditure of large sums of money in such construction. About the time the surveyors entered upon said lands the plaintiff published a notice in the Palouse News, a newspaper printed and published in the vicinity of the land, forbidding all persons to trespass thereon; but this was the only objection made to the construction of the road. In the month of August, 1887, the Northern Pacific Railroad Company, claiming to be the owner of lots 10, 11, 14, and 15, above described, conveyed the same to one William L. Powers, and on the 14th day of September, 1887, Powers conveyed to the Spokane & Palouse Railway Company a right of way 200 feet wide across said lots 10 and 11, being the same right of way then claimed by the Spokane & Palouse Railway Company, and now claimed by the Northern Pacific Railway Company. On the 12th day of May, 1897, the Spokane & Palouse Railway Company, William L. Powers, and others, as successors in interest of Powers, under the above deed of conveyance from the Northern Pacific Railroad Company, brought an action in the superior court of Whitman county for the purpose of having the plaintiff in this action declared a trustee of lots 10, 11, 14, and 15, above described, for the plaintiffs in said last-mentioned action. A demurrer to the complaint in said action was sustained, and a final judgment entered for the defendant therein, the plaintiff herein. Said judgment was thereafter affirmed by the Supreme Court of the state of Washington and by the Supreme Court of the United States. No suit or action of any kind was commenced by this plaintiff to recover the possession of said right of way, or to enjoin or restrain the construction of said road or its maintenance over said right of way, or to recover damages for the taking or retention of said right of way, prior to the commencement of this action. This action was commenced shortly after the decision of the Supreme Court of the United States in the action above referred to. The summons was served on the Northern Pacific Railway Company on the 9th day of October, 1901, and the complaint filed on the 4th day of June, 1902. The Spokane & Palouse Railway Company conveyed the right of way in controversy to the Northern Pacific Railway Company on the 21st day of February, 1889. The foregoing facts, and others not deemed material, are set forth in the pleadings and agreed to by the parties. This action was brought to recover the possession of the right of way above referred to across lots 10 and 11. The court below awarded to the plaintiff the possession of all of said right of way, except a strip of land 25 feet in width along which the road is constructed, and a parcel of land 100 feet square for a depot site, but stayed execution on the judgment for a period of 90 days, in order that the Northern Pacific Railway Company might have an opportunity to condemn and appropriate the remainder of the right of way. From the judgment so entered the defendants appeal.

From the foregoing facts the appellants make the following contentions: First, that the Northern Pacific Railway Company, as successor in interest of the Spokane & Palouse Railway Company, has a right of way 200 feet in width across said lots 10 and 11 by adverse possession under the laws of the state of Washington; second, that the Northern Pacific Railway Company, as successor in interest of the Spokane & Palouse Railway Company, has a right of way 200 feet in width across said lots 10 and 11 under the act of Congress of March 3, 1875, c. 152, 18 Stat. 482 [U. S. Comp. St. 1901, p. 1568], granting rights of way over public lands to certain railway companies; and, third, that, inasmuch as the Northern Pacific Railway Company is in possession of the right of way, using the same for public purposes, a possessory action to recover the land will not lie.

1. The Northern Pacific Railway Company and its predecessor in interest have held the right of way in controversy openly notoriously, adversely, and under color of title and claim of right for more than 10 years prior to the commencement of this action; and unless there was something in the nature of the respondent's title or in the pending litigation that prevented the operation of the state statute of limitation, the defense of adverse possession must prevail. The appellants contend that the respondent, by virtue of his settlement rights, might have enjoined the Spokane & Palouse Railway Company from entering upon the land, or from interfering with his possession, or might have recovered damages for injury to his possession in an action at law. This is no doubt true; but the respondent holds title under a patent from the United States, and he contends that the state statute of limitations was dormant until patent issued. This presents a federal question, and we must look to the decisions of the Supreme Court of the United States for our guidance. Under the laws of Missouri a homesteader or pre-emptioner may maintain an action of ejectment from the date of his filing to recover possession of the land embraced in his entry. By reason of this fact the Supreme Court of that state held that the state statute of limitations commenced to run as soon as the right of entry accrued, notwithstanding the title was in the United States. The case was taken to the Supreme Court of the United States, and in Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534, the judgment was reversed, the court saying: 'But neither in a separate suit in a federal court nor in answer to an action of ejectment in a state court can the mere occupation of the demanded premises by plaintiffs or defenda...